Tuesday, January 28, 2014

TO:
J. René Gallant,
President, Nova Scotia Barristers’ Society

FROM:
Dianne Pothier, NSBS member
#1982-0069 (non-practicing)

RE:
Trinity Western
University’s proposed Law School

DATE: January
18, 2014

I am writing in response to your
invitation for comment on whether the proposed Law School at Trinity Western
University should be recognized as conferring a common law Canadian law degree
for the purposes of admission to the Nova Scotia Barristers’ Society. I am writing as a member of the NSBS
continuously since 1982 (mostly with non-practicing status) and as a Professor
Emeritus of the Schulich School of Law. In
most years during my time on the Dalhousie Law Faculty, from 1986-2012, I taught
either Public Law (with a focus on human rights law and Charter equality) or Constitutional Law or both. I have also published extensively in these
areas.

TWU’s Community
Covenant

Trinity Western University is a private,
faith based university affiliated with the Evangelical Free Church of Canada. Faculty and staff are required to sign an
annual faith statement. Faculty, staff
and students are required to sign a “Community Covenant” that commits them, inter alia, to “treat all persons with
respect and dignity” and to abstain from “sexual intimacy that violates the sacredness
of marriage between a man and a woman” (Community Covenant, s. 3). Students
need not be adherents of the Evangelical Free Church faith, or any other
Christian faith, but are nonetheless required to abide by the religiously-based
code of conduct. The Community Covenant
not only commits signatories in respect of their own personal conduct, but also
incorporates accountability for the conduct of others within the TWU community:

Ensuring that
the integrity of the TWU community is upheld may at times involve taking steps
to hold one another accountable to the mutual commitments outlined in this
covenant. As a covenant community, all
members share this responsibility. Community Covenant, s. 5)

Signatories of the Community Covenant
further “understand that … I have also become an ambassador of this community
and the ideals it represents.”
(Community Covenant, penultimate paragraph) Even if done in a way that respects the
“sinner,” this Community Covenant creates an unwelcoming environment for those
involved in same-sex intimacy of any kind (whether within or outside marriage)
and opposite-sex intimacy outside marriage.
This is blatant discrimination on the basis of sexual orientation and
marital status. In terms of employment
and admission policies, however, this discrimination is permitted under British
Columbia human rights legislation because TWU is exempt as a religiously-based
private institution. Nonetheless, the
implications of taking a TWU degree into the public realm raise very different
questions.

The Federation of Law Societies split the
assessment of the proposed TWU Law School into two issues: (1) whether the
proposed TWU Law School meets the “national requirements” for knowledge and
skills requisite for admission to a bar in a Canadian common law jurisdiction –
mandate of the Approval Committee; and (2) whether there are other public interest
issues that should preclude approval of the TWU Law School as a basis for
admission to a bar – mandate of the Special Advisory Committee, and the subject
of John B. Laskin’s legal opinion. In my
assessment, such a splitting of issues is artificial. In both contexts, the issue is the same. Does the discriminatory context of TWU as a
private institution taint reliance on a TWU degree in the the public realm.

The TWU Community Covenant is more than
a statement of religious beliefs. It is
a commitment to enforcing a religiously-based code of conduct, not just in
respect of one’s own behaviour, but also in respect of other members of the TWU
community, including non-adherents of the faith. It is also a commitment to being an
ambassador of TWU’s ideals. The extent
to which the TWU Community Covenant is actually enforced is not the point. TWU cannot rely on non-enforcement when the
issue is admission to the practice of law where compliance with legal
undertakings is sacrosanct. The TWU
Community Covenant is a fundamental aspect of the culture of the institution,
which pervades much more than course content.

The Federation’s Approval Committee
limited itself to course content.

51 Although the
course outlines for TWU's proposed Ethics and Professionalism and
Constitutional Law courses are consistent with what one would expect for such
courses, the members of the Approval Committee see a tension between the
proposed teaching of these required competencies and elements of the Community
Covenant. In particular, the Approval Committee is concerned that some of the
underlying beliefs reflected in the Community Covenant, which members of
faculty are required to embrace as a condition of employment, may constrain the
appropriate teaching and thus the required understanding of equality rights and
the ethical obligation not to discriminate against any person. This tension appears to be reflected in the
description of the mandatory Ethics and Professionalism course (LAW 602), which
states that the course “challenges students to reconcile their personal and
professional beliefs within a framework of service to clients and community
while respecting and performing professional obligations and responsibilities.”

52. Based on the
proposed course outlines and TWU's commitments and undertakings noted above,
the Approval Committee concluded that the issue of whether students will
acquire the necessary competencies in both Ethics and Professionalism, and
Public Law is, at this stage, a concern, rather than a deficiency. (Approval
Committee Report)

The
Federation’s Approval Committee relied on assurances from TWU that it
appreciated such tensions, and would reconcile them. But the assurances were
simple assertions, without any explanation as to how this would be done. TWU said only that key cases on sexual
orientation equality would be taught, and standard texts relied upon. (May 13,
2013 letter from Kevin G. Sawatsky, p. 4, Appendix to Approval Committee
Report) That could be done by teaching
simply that Canadian equality law is inconsistent with their particular
perspective on Christianity. The real
question is not what will be taught, but how it will be taught, i.e. will it be
taught in a way that accepts that constitutional and legal equality dictates
prevail over religious judgment. TWU has
not confronted that issue. TWU is
presumably not in a position to address that question without yet knowing who
will be teaching the courses. In ordinary
circumstances, it would not be appropriate for the Federation’s Approval
Committee or any bar society to probe deeply into the pedagogy of a Law School
course. But where there is such a stark
tension between an institutional culture of discrimination and legal
obligations of equality and non-discrimination, more than a statement of
concern is warranted.

Most lawyers probably face some degree
of tension between their personal beliefs and the legal order, and must find a
way to reconcile them in a way that respects the law. Depending on the nature of the tension, that
may range from easy to difficult to do. Given the depth of opposition to same-sex
sexual intimacy, and opposite-sex sexual intimacy outside marriage,
incorporated into the TWU Community Covenant, the challenge to reconcile such
deeply felt beliefs, and the commitment to enforcing them, with public responsibilities
respecting equality is especially acute.
That should place a particularly high onus on TWU to explain, which it
has not even begun to meet.

The SCC decision
in BCCT v. TWU

Much of the discussion of TWU’s
proposed Law School has involved debate over the impact of the Supreme Court of
Canada’s decision in British Columbia
College of Teachers v. Trinity Western University, [2001] S.C.R. 772. I think a strong argument could be made that
this case would be decided differently today by the Supreme Court of
Canada. That Court has not been averse
to reversing itself, particularly in the area of constitutional and human
rights law: e.g. Health Services and Support – Facilities Subsector Bargaining
Association v. British Columbia, [2007]
2 S.C.R 391,incorporating
a right to collective bargaining within constitutional protection of freedom of
association, reversing the 1987 Labour Trilogy; British Columbia (Public Service
Employee Relations Commission) v. British Columbia Government and Service
Employees' Union, [1999] 3 S.C.R. 3 (Re Meiorin), adopting a
unified approach to direct and adverse effects discrimination, reversing the
earlier bifurcated approach; Saskatchewan
Human Rights Commission v. Whatcott, 2013 SCC 11, modifying in part the definition
of hatred in the context of human rights legislation prohibitions of hate
speech. However, it is quite speculative
to contend that the SCC would be ready to reverse itself in BCCT v. TWU. I am prepared to proceed on the basis that BCCT v. TWU remains good and binding
law. On that assumption, I respectfully
disagree with the view of the Federation’s Special Advisory Committee, and the
opinion of John Laskin on which it relied, that the BCCT v. TWU decision is determinative. In my assessment, it can be distinguished.

BCCT v. TWU involved an application by
TWU for certification of its teacher training program. The BCCT rejected the certification
application, a decision that was held invalid by the majority of the Supreme
Court of Canada. The SCC recognized that
the TWU Community Covenant raised serious concerns, but concluded it was improper
to deny certification in the absence of specific evidence that TWU graduates as
a group would actually discriminate against students. To avoid a conflict between religious freedom
and equality, the majority of the SCC drew a “line … between belief and conduct”
(para. 36), leaving individual discriminatory teacher conduct liable to
disciplinary proceedings (para. 37). It
is important to note the context of TWU’s application. The status
quo ante, which already had certification, was four years of education at
TWU followed by a final year at Simon Fraser.
TWU’s new proposal was to replace the final year at Simon Fraser with
one at TWU. The majority of the SCC
relied on the nature of that fifth year at Simon Fraser, where “[o]n the
evidence, it is clear that the participation of Simon Fraser University never
had anything to do with the apprehended intolerance from its inception to the
present” (para. 38), questioning: “[a]fter finding that TWU students hold
fundamental biases, based on their religious beliefs, how could the BCCT ever
have believed that the last year's program being under the aegis of Simon
Fraser University would ever correct the situation?” (para. 38).

The Simon Fraser teacher training
curriculum did not have any anti-discrimination component. In contrast, Law Schools are mandated to teach
legal principles of equality, in the constitutional and statutory context. Furthermore, while public school teachers
carry only the obligation of all members of the community not to discriminate
in the provision of public services, lawyers have an extra level of
responsibility. Lawyers are potentially
involved in the administration of constitutional and statutory equality and anti-discrimination
provisions. Thus there is good reason to
impose a higher bar than in BCCT v. TWU,
i.e. good reason for going beyond looking for specific evidence that TWU Law
School graduates will, as a group, engage in discriminatory conduct.

The extra step of a year at Simon Fraser
was neither designed for, nor effective in,
addressing the discrimination issues raised by the TWU Community
Covenant. In contrast, Law Societies are
in a position to address those issues by adding an extra step to the bar
admission process. If a law degree from
TWU were treated as in the same category as those from foreign law schools, the
National Committee on Accreditation requirements, or some provincial
counterpart, could be used to fill the gap in requirements for admission to a
Canadian bar.

TWU argues that such an extra step would
run contrary to the freedom of religion of its graduates. In addressing the justified limits on freedom
of religion in order to promote equality, it must be remembered that there is more
latitude in limiting freedom of religion outside a penal context, where instead
what is involved is access to benefits or privileges; Alberta v. Hutterian Brethren of Wilson County, [22009] 2 S.C.R.
567, paras. 37, 95. Admission to a bar
clearly falls into the latter category. The Hutterite
case recognized inevitable “conflicts with individual beliefs” (para. 90),
setting the essence of a Charter s. 1
inquiry as: “whether the limit leaves the adherent with a meaningful choice to
follow his or her religious beliefs and practices.” (para. 88)

A decision by a provincial bar society
to deny recognition to a TWU law degree would not preclude anyone from
conducting themselves in their own sexual activities in accordance with their
religious beliefs. It would ultimately
only address the inability to impose, in the public sphere, such a code of
conduct on others. It would add an extra
step, through the National Committee on Accreditation or a comparable
provincial process, but would not preclude admission to the practice of law.
Moreover, there is much that can be done with a legal education apart from
entering the legal profession. Although
Carleton’s law program is a world apart from TWU, it is an example of an
academic study of law with utility not connected to admission to a bar. The limits on freedom of religion involved in
a bar society decision not to recognize a TWU law degree are quite minimal.

Conclusion

TWU caters primarily to British
Columbia residents. Thus there may be
very few graduates of a TWU Law School interested in admission to the
NSBS. But that does not make the matters
of principle any less important. Beyond
the numbers, what matters is the anti-equality message that would be conveyed
by a decision by the NSBS to recognize the TWU Law School as qualifying for bar
admission. Such a decision would
undermine the message conveyed by the annual pride reception held by the
NSBS. Such a decision would undermine
the message conveyed by the fact that the Society has an Equity Officer. Such a decision would undermine the message
conveyed by the ad hoc committee,
chaired by Emma Halpern as Equity Officer, on Employment Equity in the Legal
Profession. I strongly urge the NSBS not
to undermine those equality messages.
Instead the NSBS should show leadership in denying approval to the
proposed TWU Law School.

Monday, January 27, 2014

The Ottawa Rape Crisis Centre needs a student with interest or experience in the non-profit/charity sector to revamp the Centre’s Policy Manual.This would entail reviewing legislation, doing some targeted research, and drafting policy, and requires the student to have a background in feminist theory (or committed beliefs) so as to infuse the Policy Manual with feminist principles, where applicable, and to actively engage with the ORCC on coherences and conflicts between legal requirements and feminist values.Eligible students in the JD program at the Faculty of Law can see details here.

Interesting new Slaw blog by Amy Salyzyn, Sessional Professor at
University of Ottawa, about recent attempts to overcome bias in law firm
recruitment processes. Here is the blog, re-posted with permission:

In early January, London-based global mega-firm Clifford Chance LLP made
headlines when The Independent reported
that the firm had “quietly introduced a ‘CV blind policy’ for final interviews
with all would-be recruits.” According to the report, “staff conducting the
interviews are no longer given any information about which university
candidates attended, or whether they come from state or independent schools.”
The reported aim of the change in practice was to “neutralize” bias towards
candidates from elite English universities like Oxford and Cambridge. An
anonymous senior employee was quoted in The Independent’s story, saying,
“We’re looking for the gems and they’re not all in the jeweller’s shop.”

The article in The Independent suggests that the policy change has
been remarkably successful in its first year of operation: the firm saw a 30%
increase in the number of educational institutions from which its recruits
hailed. An editorial
in The Independent lauded the policy as a move “in the right direction”
for “greater social mobility.” The website Lawyer2B
has credited the “CV blind policy”, along with other changes to Clifford
Chance’s recruitment process, with tripling the firm’s intake of black,
Pakistani and Bangladeshi candidates in two years.

At first blush, this story might seem to bear little relevance to
entry-level hiring among Canadian law firms. The controversial history of
elitism with “Oxbridge”
admissions doesn’t find an easy comparator among Canadian universities. As a
general matter, large Canadian law firms appear to draw from a diversity of
Canadian law schools when it comes to staffing their (often multi-provincial)
offices.

The broader issue of hiring bias and what to do about it is, however,
something that the Canadian legal profession ought to take seriously. The October
2012 Final Report of the LSUC Articling Taskforce received “numerous submissions”
from equality-seeking groups who, among other things, expressed concerns that
their members may be disproportionately represented among those unable to find
articling positions and proportionately less represented among those who obtain
articling positions in large firms. The same year, the Law Society of British
Columbia’s report, Towards
a More Representative Legal Profession: Better practices, better workplaces,
better results,highlighted the chronic underrepresentation of
Aboriginal and visible minority lawyers in that province’s legal profession.

Although many Canadian law firms have begun to tackle issues of workplace
diversity and hiring bias, one wonders if enough is being done to tackle this
problem. Indeed, it is difficult to know exactly what is being done.
Beyond largely promotional materials on firm websites, there doesn’t seem to be
much detailed or candid information about what concrete steps Canadian law
firms are taking to address the potential role of bias (both conscious and
unconscious) in hiring decisions.

Engaging in fair and equitable hiring practices is an essential part of a law
firm’s ethical infrastructure, just like conflict check systems and
appropriate accounting policies. The types of measures that might be effective
in tackling bias in hiring, however, are much less obvious to most lawyers than
the tools to ensure meaningful conflicts or accounting systems. This makes it
important for firms that have taken steps to reform hiring practices to share
information about what they are doing and to report on what has and has not
worked in combating bias in hiring. One might imagine a clearinghouse of best
practices that could be developed. Small to medium size firms, who are unlikely
to have the same resources as larger law firms to conduct research or hire
consultants to assist with recruitment, especially stand to benefit from such a
resource.

The “quiet introduction” of Clifford Chance’s new policy suggests that law
firms are shy to share information about innovations in recruitment processes.
The reports from Ontario and British Columbia mentioned above, however, suggest
that timidity is no longer a defensible option. We appear to have significant
problem. We need all hands on deck working to fix it.

* The Latest & Greatest from SSRN

This paper is located within the discursive and spatio-temporal
landscape of post 9/11 Canada in which national identity and beliefs about
belonging are embedded in pervasive Islamophobia. Its starting point is that
social media are key sites for expression of discrimination and intolerance
vis-à-vis people of the Muslim faith, and especially the constitution of Muslim
face and head scarves as a metonym for Islamic terrorism and a quintessential
symbol of uniquely fundamentalist manifestation of patriarchy. I ask, however,
whether new modes of visibility might be captured when we examine
representational sites of Muslim femininity through the lens of ‘new’ or
‘critical’ legal pluralism. I highlight how women have used Social Networking
Sites (SNSs) to respond and reconfigure more entrenched discourses around
Muslim femininity circulated elsewhere, such as in formal institutionalized
state-based law, mainstream/Western feminist discourses, and in popular
cultural productions. I have found that Muslim women deploy social media to
constitute or express alternative subjectivities and to represent and evaluate
their own understandings of feminism, normative femininity, religious
practices, including the multiple meanings that attach to the donning of
Islamic headscarves.

Tuesday, January 14, 2014

On February 6, Justice Harry Laforme of the Ontario Court of Appeal will deliver a special lecture in Aboriginal law entitled "Aboriginal Rights Doctrine in Canada: The Fruit of the Poisoned Tree?" The lecture will take place in FTX 147 from 5-6pm. All of the details are available here.

The lecture will also celebrate the launch the historic 5th edition of Canadian Charterof Rights and Freedoms, edited by Professors Errol P. Mendes and Stephane Beaulac.

Co-sponsored by
the Shirley E. Greenberg Chair for Women and the Legal Profession

Following
on successful Emerging Issues in
Canadian Public Law Conferences since 2011, planning is now underway to put
on the Fourth Annual conference.As
before, our intention is to highlight the importance of public law issues in
Canada, and the strength and depth of public law interest and expertise in
Ottawa. We also hope to include speakers from outside Ottawa, as well as from Common
Law, Civil Law and the Department of Justice.

For
the 2014 Emerging Issues conference, we have decided to focus on two themes

1.Stare decisis in
public law

Recent cases have raised the question of
how stare decisis operates at a theoretical and a practical level in public law
(and especially constitutional law) cases. Under what circumstances should the
Supreme Court of Canada reverse its own precedents? Is it ever acceptable for
lower courts to decline to apply a Supreme Court of Canada precedent in light
of changing social conditions or other factors? How should lower courts manage
cases that seek to reverse existing precedent? What are the evidentiary demands
of such cases? We welcome papers on these and other questions about stare
decisis in the public law context.

2.Fundamental
freedoms

In
recent years, we have witnessed a sharpening of the debate concerning the scope
and meaning of our basic civil liberties, as reflected in the Charter’s
fundamental freedoms (section 2).From
regulating the internet, to state bans on religious dress, to the right to
strike, scarcely a portion of section 2 has remained free of controversy.We welcome papers addressing any aspect of
the fundamental freedoms.We are
particularly interested in forthcoming cases, and/or issues likely to be of
public interest.Papers considering
section 2’s relationship to the Charter’s other sections are welcome.

There
are distinct, important public law issues regarding each of these topics. But
we are also very open to cross-cutting takes on these themes.

Please
also feel free to suggest papers on Emerging Issues that do not necessarily
fall within our suggested themes.It is
possible that we will adjust the themes, and in any event, suggestions that are
not taken up this year may be explored and taken up with proposers in
subsequent years.

Please
set out a half-page description of your proposal and send it to peter.oliver@uottawa.caor carissima.mathen@uottawa.ca
by Friday, January 31, 2014 at the latest.Please keep in mind that presentations will be limited to approximately
10-15 minutes.Written papers will be
expected in advance of the Conference, by the middle of May at the latest. They
will be published on the Public Law Group website as part of a Working Paper
series that may lead to publication, either in the National Journal of Constitutional Law or, if appropriate, in book
form.We would welcome hearing from you
if you are interested in the Working Paper series, even if you are not
interested in giving a paper at the Conference. Please consult our website from
time to time for more information regarding Working Paper ideas.

If
you have any questions, about the Conference or about the Public Law Group,
please feel free to speak to any of the members of the Organizing
Committee.We look forward to hearing
from you.

Thursday, January 9, 2014

As an organization aimed at promoting equity, justice and opportunity,
FACL strongly opposes the Federation of Law Societies of Canada's
(FLSC’s) recommendation that provincial law societies approve Trinity
Western University's (TWU's) proposed law school program. FACL is
also disturbed by the B.C. Minister of Advanced Education's hasty
approval of TWU's law degree program the day after the FLSC concluded its
protracted and closed-door process.

Specifically, FACL is of the view that the TWU Community Covenant
Agreement, that is required to be signed by all TWU faculty, staff and
students, is discriminatory. The Community Covenant Agreement
includes a requirement to abstain from “sexual intimacy that violates the
sacredness of marriage between a man and woman” and provides TWU with the
reserved rights to question, challenge or discipline its members in response
to actions that impact personal or social welfare. Past iterations
of the Community Covenant included a requirement to refrain from
practices that are biblically condemned, including homosexual behaviour.

The mandatory requirement to enter into the Community Covenant Agreement
as a condition to school admission and employment at TWU has the effect
of excluding applicants from the lesbian, gay, bisexual, transsexual and
transgender communities and negatively impacts upon the human dignity of
persons in these communities.

FACL believes that all law schools across Canada must create a forum for
free exchange of ideas, premised upon inclusion, tolerance, respect and
opportunity for equal participation. FACL further believes that law
schools and the institutions that authorize the creation of these schools
must act in the public interest and ensure that their policies and
practices adhere to the principles of the Canadian Charter of Rights and
Freedoms and provincial and territorial human rights legislation.

FACL agrees with the Council of Canadian Law Deans that, “Discrimination
on the basis of sexual orientation is unlawful in Canada and
fundamentally at odds with the core values of all Canadian law schools.”

FACL calls upon the provincial law societies and government decision
makers across Canada, to act in the public interest and to reject TWU’s
application for accreditation of its law school program and to withdraw
all approvals and consents on the basis that its policies and practices
are discriminatory and contrary to the principles of human rights law in
Canada. In addition, FACL advocates for the inclusion of a
non-discrimination policy as a condition that all law schools must adhere
to in order to maintain its accreditation.